Chandiramani Bhagwan Kanayalal v. The Commissioner of the Customs and Excise Department

CACV000566A/2001

CACV 566/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 566 OF 2001

(ON APPEAL FROM HCAL NO. 2580 OF 2000)

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Coram: Hon Rogers VP, Le Pichon JA, and Burrell J in Court

Date of Hearing: 19 April 2002

Date of Judgment: 19 April 2002

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal. The basis of the application is that the matters raised on this appeal are matters of great general or public importance. However, it has been drawn to our attention that an arrangement has been arrived at with the applicant in the case, who would be the respondent on the appeal, on the basis that that party will not be appearing and arguing in the Court of Final Appeal.

2.Irrespective of the merits of the application to take the matter to the Court of Final Appeal, there is this problem that our system of law is an adversarial system and if there is a matter which requires the attention of the Court of Final Appeal on the basis that it is a matter of great general or public importance, it seems to me to be very important that the matter is argued properly. Although Mr Kwok, very properly and, I have no doubt, with the best intentions, has indicated that he will perform the function of counsel and put both sides of the argument, that, in my view, is no substitute for having proper argument on both sides in the case.

3.In those circumstances, although this Court might otherwise have been disposed to have granted leave to appeal to the Court of Final Appeal, in my view, this matter should be considered by the Court of Final Appeal as to whether they wish to take up this case on the basis that it is not going to be fully argued on both sides, or whether they wish to make some arrangements by way of the appointment of an amicus or otherwise to redress the situation. Both matters are, in my view, for the Court of Final Appeal.

4.In my view, therefore, this application should be refused on the basis that it has to be considered by the Court of Final Appeal itself.

Hon Le Pichon JA:

5.I agree.

Hon Burrell J:

6.I agree.

Representation:

Mr Kwok Sui-hay, instructed by the Department of Justice, for the Respondent/Applicant